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Kewano v Joseph [2013] PGSC 38; SC1261 (28 June 2013)

SC1261

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 30 OF 2013

Application under s 155(2)(b) of the Constitution
And in the matter of Part XVIII of the Organic Law on National and Local –Level
Government Elections

Between:

DEI KEWANO
Applicant

And:

ISSAC JOSEPH
First Respondent

And:

ANDREW TRAWEN,
THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, CJ
2013: 27th & 28th June

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution – Interlocutory decision of National Court on an election petition - Dispensation of requirement that decision must be final - exercise of discretion – Principles - Supreme Court Rules 2012 (as amended), O 5 rr 7, 8 & 39.

Cases cited:

Chan v Trawen (2012) SC 1215
Yagama v Yama (2013) SC1219.

Counsel:

N Tame, for the applicant
P Mawa, for the first respondent
H Virogo, for the second respondent

28th June, 2013

1. INJIA CJ: This is an application made under O 5 r 39 of the Supreme Court Rules 2012 (as amended) (SCR) seeking an order to dispense with the requirements of SCR, O 5, rr 7 & 8 that the decision of the National Court the subject of the review under those rules be a final decision given after the hearing of an election Petition. If the order were granted the applicant will seek leave to review an interlocutory ruling in which the National Court dismissed in objection to the competency of the Petition brought under Part XVIII of the Organic Law on National and Local-Level Government Elections.

2. Counsel representing the parties made submissions on the question whether SCR, O 5 r 39 grants jurisdiction in a single Judge of the Supreme Court to dispense with any requirement of SCR and if so, how the discretion is to be exercised in the circumstances of this case.

3. I deal with various important points that were argued before me. There is no dispute with regard to the jurisdiction of the Supreme Court constituted by a single Judge of the Supreme Court to deal with an application under SCR, O 5 r 39 seeking an order to dispense with any requirement of SCR. In fact on 28 May 2013, the Judges amended r 39 rule to allow a single Judge of the Supreme Court to deal with such applications. Following my decision in Chan v Trawen (2012) SC 1215 and the decision of the full Court in Yagama v Yama (2013) SC1219, the jurisdiction conferred by r 39 is to be exercised in respect of any provision of SCR that imposes a requirement including the requirement in rr 7 & 8 that a decision of the National Court the subject of the application for leave for review be the final decision given after the hearing of a Petition.

4. There is also no dispute with regard to the relevant considerations to be taken into account by this Court in exercising its discretion under r 39. Those are the same as the four considerations I set out Chan v Trawen. As I intimated to counsel during argument, the four considerations I enunciated in Chan v Trawen are not exhaustive. The consideration enunciated by the full Court in Yagama v Yama is an additional one. That is, "the trial judge clearly erred on the face of the record and that therefore, the review would succeed". A further consideration is that the application under O 5 r 339 must be made promptly. Where there has been a delay in making the application, the applicant must offer a reasonable explanation for the delay.

5. In summary, the considerations to be taken into account in exercising the discretion given under SCR, O 5 r 39, amongst others, are as follows:

(1) Whether the rule is founded on the dictates or requirements of law and expressed in mandatory terms requiring strict compliance.

(2) The impact of non compliance on the parties.

(3) Whether there are alternative avenues open under the rules of court for the applicant to seek redress in Court for the same grievance.

(4) Whether the requirement of the rule sought to be dispensed with is one that is fundamental and one that goes to the very foundation upon which the Court's review jurisdiction is based;

and if the dispensation were granted, it would render the review procedure contained in the PRR ineffectual or meaningless, and tantamount to re-writing the rules of court by judicial act.

In other words those rules must be ancillary and facilitate implementation of the substantive provisions of the rules that create avenues for relief by way of judicial review.

(5) Where "the trial judge clearly erred on the face of the record and that therefore, the review would succeed. We suggest such clear instances to be: where the petition had not been signed and attested (s 208 (c ) and (d), and where security for costs had not been deposited (s 209),

and the petition proceeded to substantive hearing despite these clear breaches".

(6) The application must be made promptly. Where there has been a delay, a reasonable explanation is offered.

6. I have given careful thought and consideration to the material and arguments of counsel put before me. I have considered the facts with regard to the matters that were argued before the trial judge and the manner and form of the judgment that was delivered after the hearing. I agree with the applicant's counsel that there does exist a cause for concern for a possible apprehension of bias in the way the trial Judge adopted a significant portion of the submissions of one of the counsel as part of the reasons for decision without expressly saying so in the judgment; and, rendered a ruling in favor of that counsel's client. It is accepted practice for Judges to adopt submissions of counsel as part of their reasons for the judgment and expressly say so in the judgment.

7. A ruling on an interlocutory matter in an election petition matter may dispose of an interlocutory point in a case or dispose of the substantive proceedings. If the ruling disposes of the substantive proceedings, the ruling can only be challenged in the appellate Court (on grounds such as apprehension of bias on the part of the trial Judge). An application for recusal cannot be made before the same Judge because he is functus officio. A determination of the review by the appellate Court on that ground is conclusive of the matter.

8. If the ruling disposes of an interlocutory point, the Judge is still seized of the case. A party aggrieved by the ruling for reasons to do with apprehension of bias has two avenues open to him to challenge the decision. He may challenge the ruling in the appellate Court, which if successful, will quash the ruling and direct that the interlocutory application be reheard by another Judge.

9. In the alternative, he may apply to the same Judge for his recusal from the case. An application for his recusal from continuing with the case can only go before the same Judge that is seized of the substantive case and be determined by him. It is a long standing practice and one that is firmly established in this jurisdiction that an application for recusal of a judge goes before the same Judge the subject of the application for recusal.

10. There are good reasons why such application goes before the same Judge. Apart from other explanations for the practice, it is that Judge's judgment call as to whether he should continue with the case in the light of the circumstances and facts put before the Judge. This practice also provides an opportunity for the Judge to reconsider his continued involvement in the case in the light of the matters put before him. Whatever decision he makes is a judgment call that only that Judge is best placed to make. If a party is dissatisfied with his decision on recusal, it is open for the party to challenge it at the appropriate time and at an appropriate stage of the proceedings. As to which of the two avenues an aggrieved person chooses to address his grievance is entirely a matter for him.

11. The ruling made in the case at hand is an interlocutory decision that determined a preliminary point in the case.

12. In applying the six (6) considerations to the circumstances at hand, I consider the third consideration stated in Chan v Trawen (alternative avenues open to address the same grievance) and the fifth consideration stated in Yagama v Yama to be the paramount consideration that I apply in reaching my decision. In my view, in the circumstances of the case at hand, the preferred option of the two referred to, is that the trial Judge be given an opportunity to make his own judgment on whether he should continue with the balance of the case. That Judge has before him an application for his recusal that has been filed and he should be given complete freedom to make his own decision on the application. It is too early for anyone to pass judgment on how he will handle the question of recusal or disqualification, based on a consideration of all relevant matters. Such matters include the construction of his previous ruling the subject this review, which I understand is the main point of contention and challenge in this review.

13. Further, the nature of the error alleged in this review, though apparent on the face of the judgment given by the trial Judge, is not one that falls into the class of clear -cut errors that are apparent on the face of the record, that were mentioned by the full Court in Yagama v Yama. The error in the present case concerns a discretionary matter and it is best left to the same trial Judge to pass judgment on whether he was wrong in structuring his ruling in the way he did and whether or not in the interest of natural justice and fairness, he should continue to sit in the case.

14. For the foregoing reasons, I am not satisfied that a case for dispensation of the requirements of SCR, O 5 r 7 & 8 have been made out and dismiss the application with costs to the first respondent.
______________________________________________________
Nicholas Tame Lawyers: Lawyer for the Applicant
Mawa Lawyers: Lawyer for the First Respondent
Niugini Legal Practice Lawyers: Lawyer for the Second Respondent